EPHRAYIM H EPHRAYIM Vs. TURNER, MORRISON AND CO

JUDGEMENT

(1.) A preliminary point has been taken on behalf of the defendants that the plaint is not properly signed, inasmuch as it was signed by a person holding not a general power of attorney but a special power of attorney given by the plaintiff for the purposes of this particular suit. The case is governed by Order III, Rule 2, and the rule in the Civil Procedure Code on that point has been modified by the rules of this Court which will be found at p. 1215 of Mulla's Civil P. C.. The persons who, under Order VI, Rule 14, are held to be duly authorised by a party unable to sign the plaint himself, are, under the rules of this Court made under Section 122, " persons holding general powers of attorney from parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, the application or act is made or done, authorising them to make and do such appearances, applications and acts on behalf of such parties." The plaintiff in this case is a resident at Basra in Iraq, and has given a power of attorney to a person residing in Bombay who has signed the plaint, and it is contended that this power of attorney is a special power of attorney and not a general power of attorney. The terms of the power of attorney are:- I, the undersigned Ephrayim Hiskail Ephrayira residing at Seef quarter Basrah, Iraq, do hereby constitute and appoint Mr. Khedoori Rubain Aboodi residing at present at Bombay India, to be my true and lawful attorney in connection with realisation of the amount of decree No. 144 of 1023 for Rupees five thousand besides the Court expenses passed by the Court of first instance at Basrah against Turner Morrison & Co., at Bombay India. The said attorney is further authorised to file suit, make application and sign documents and appoint pleaders relative to the above suit, give receipt for the amount and make compromise, ask for attachment or the imprisonment of the debtor and generally do all what he thinks necessary in the above case the same manner would I done if present to which I have absolutely no objection

(2.) It is contended by the learned Counsel for the defendants that this is a special power of attorney and not a general power of attorney. It has been contended by the learned Counsel for the plaintiff that no point was taken in the written statement as to the signature on the plaint being insufficient, and so the point cannot be taken now. It is, however, not necessary under the section of the Code relating to pleadings that points of law should be taken in the written statement. It-is only necessary to plead facts. It is also contended that this is a general power of attorney, and that the stamp paid on it at the stamp office is the stamp applicable to a general power of attorney. On reading the power of attorney I am of opinion that this is a special power of attorney, because it authorises the attorney to act only in connection I with the one particular matter, i. e., the realisation of the amount which had been obtained by the decree against the defendants in the Basra Court. Reference has been made to the case of Fardaji Kasturji V/s. Chandrappa (1916) I.L.R. 41 Bom. 40 : S.C. 18 Bom. L.R. 821 in which it was held that, where | an attorney was authorised to act in one particular matter, the) power was a special power of attorney inasmuch as the agents authorization extended not to any class of business or employment, but was restricted to the doing of all necessary acts in the I accomplishment of one particular purpose, and on reading the power of attorney which I have set forth above, I think there can be no doubt the authority of the attorney in this case extended only to the doing of acts in connection with one particular purpose, viz., the recovery of the amount due to the plaintiff in one particular suit, although for the accomplishment of the purpose it might be necessary for the agent to do a number of acts in Bombay. The learned Counsel for the defendants has referred to the case in In re Gopalrao (1901) 3 Bom. L.R. 890. That, however, was a case under the Indian Stamp Act. It was a reference under the Stamp Act, and the question was whether the instrument should be stamped as a general power of attorney or not. Each power of attorney has to be considered on its own terms, and I have no doubt that in view of the ruling in Vardaji Kasturji v. Chandrappa this power of attorney must be considered as a special power of attorney, and, therefore, it does not fulfil the conditions laid down in the amended rule as framed by this Court. It has been contended that in any event it is only a matter of procedure not affecting the merits of the case, and reference has been made to Qanpati Nana V/s. Jivanabai (1922) I.L.R. 47 Bom. 227 : S.C. 24 Bom. L.R. 1302, in which, in view of the provisions of Section 93 of the Civil P. C., the Court refused to interfere in a case where a suit had been instituted on a power of attorney which was liable to the same objection as the one in the present case. But it is a different matter where the suit has already been heard and a decree has been passed, as in that case the provisions of Section 99 of the Civil P. C. debar the appellate Court from interference in appeal on account of any error, defect or irregularity in any proceeding in the suit not affecting the merits of the case or the jurisdiction of the Court. The same was the case in the case which is referred to in Vardaji Kasturji v. Ghandrappa (1916) I.L.R. 41 Bom. 40 : S.C. 18 Bom. L.R. 821 and Charles Palmer V/s. Sorabji Jamshedji (1886) P.J. 63. In that case also, it was held that although the power of attorney was defective, the appearance with a power of attorney for the particular case was at the most an irregularity not affecting the merits of the case or the jurisdiction of the Court, and the Court, therefore, declined to interfere.

(3.) It would, however, be a matter of regret in the present case, where the plaintiff is resident outside the jurisdiction of the Court, if he were deprived of an opportunity of having the case heard on the merits merely on an irregularity which does not affect the merits. It so happens, however, that in the present case the plaintiff has com(c) from Basra and is actually present in the Court, and 1 shall, therefore, in the circumstances of this case, direct that he be allowed to amend his plaint by signing it himself, subject to this that he must pay the costs of the proceedings up to today.